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State v. Davis

Court of Appeals of Ohio, Eighth District

June 20, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
VICTOR DAVIS DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-554727 and CR-558926

ATTORNEY FOR APPELLANT Joseph Vincent Pagano.

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor BY: Edward Fadel Assistant Prosecuting Attorney.

BEFORE: E.T. Gallagher, J., Rocco, P.J., and Blackmon, J.

JOURNAL ENTRY AND OPINION

EILEEN T. GALLAGHER, JUDGE.

{¶ 1} Defendant-appellant Victor Davis ("Davis") appeals his theft conviction and sentence. We find some merit to the appeal and affirm in part and reverse in part.

{¶ 2} Davis was indicted in two separate cases. In Cuyahoga C.P. No. CR-554727, he was charged with one count of theft in violation of R.C. 2913.02(A)(3), a fifth-degree felony. The victim in that case was American Federation of Governmental Employees, Local 3283 ("AFGE Local"). In Cuyahoga C.P. No. CR-558926, Davis was charged with one count of theft in violation of R.C. 2913.02(A)(3), a fourth-degree felony. The victim in that case was the U.S. Department of Defense — Defense Finance and Accounting Services ("DFAS"). The charges arose from Davis's misuse of DFAS's time-keeping system, which is used for payroll calculations. The state alleged that by deception, Davis received compensation for work he did not perform.

{¶ 3} Davis worked for DFAS in Cleveland from November 1988 until 2010. From 1997 through 2009, Davis was president of AFGE, Local 3283 and was also an officer of the National Union, Council 171 ("Council 171"). Davis lost the local union election in May 2009 and was required to return to regularly assigned duties as a military pay technician. During his tenure as the local union president, Davis was compensated as a full-time employee under the code RGBD, which indicates the employee is performing union work. This code is referred to as "official time." An employee's time spent performing regularly assigned work is indicated by the code RG. Annual vacation time, sick leave, and holidays are also tallied in the DFAS's time-keeping system.

{¶ 4} At trial, Chester Boutelle Jr. ("Boutelle"), former deputy director for DFAS in Cleveland, testified that in May 2009 he informed Davis that he would be afforded a two-week transition period to assist the newly elected local union president before returning to his regular duties. Davis was entitled to 100 percent official time during this two-week period. Boutelle explained that after the transition period ended, Davis would work as a military pay technician processing military pay for active members of the United States military. Boutelle assured Davis that he would receive on-the-job training.

{¶ 5} Davis admitted at trial that he never performed any of the duties of a military pay technician. He testified that his supervisors never provided him with a computer or telephone, and they never assigned him any work. Yet, his time sheets indicated that he was paid on a regular basis from May 2009, when he lost the election, through May 2010. None of his time sheets during that period contained the code RG, which would have indicated that he performed any regular, non-union, work.

{¶ 6} Although Davis lost the union presidential election, he maintained a position as secretary of Council 171. Davis was permitted to use "official time" when he performed union work as an officer of Council 171, a branch of the national union. With the exception of Davis, all the witnesses agreed that Davis's union responsibilities would consume approximately 50 percent of his time. These witnesses also agreed that there was a three-month break during the period from September 2009 through May 2010, during which Davis was not required to perform any union work.

{¶ 7} John Kern ("Kern"), a human resources specialist, and Sherman Patton ("Patton"), chief of personnel and security of DFAS, investigated reports that Davis was abusing official time on his time sheets. Davis's time sheets revealed that he had 600 hours of authorized official time and 636 hours of unauthorized official time. Kern stated that the 636 hours of unauthorized official time should have been recorded as "absent without leave" and therefore without pay. Patton testified that Davis was primarily an employee of the agency and that he needed prior approval of official time. When he was not performing union activities, he should have been performing his regular assigned duties and coded such time as RG on his time sheets.

{¶ 8} In describing the procedure for obtaining approval of official time, Patton explained that senior negotiators for both DFAS and the union first notify the labor relations office of the DFAS of the employees needed for negotiations. The notice includes the dates of scheduled negotiating sessions and any preparatory time associated with those negotiations. The labor relations office then communicates the request to the employee's supervisor, and the supervisor provides the final approval. According to Patton and Darlene Asberry ("Asberry"), Davis's immediate supervisor, Davis never requested approval of official time.

{¶ 9} When Patton confronted Davis about his misuse of official time, Davis denied the allegation and asserted that he was charging his time as regular time. Seeking clarification, Patton asked Davis: "So you're charging your time as regular time to your normally-assigned duties?" To which Davis replied, "Yes, I am." (Tr. 292.)

{¶ 10} Asberry and Patricia Edwards ("Edwards"), a lead military pay technician, testified that they thought Davis was still entitled to 100 percent official time because he was performing union duties. Asberry approved Davis's time sheets for 17 pay periods, which Edwards submitted on his behalf as a "surrogate" technician. No one informed Asberry as to how Davis should have coded his time after losing the union presidential election. Davis left a sign on his cubicle indicating he was away on union business, and Asberry rarely saw him in the office. She testified that Davis never requested training or any work assignments. However, when upper-level supervisors informed Asberry that Davis needed to be trained, she eventually began training Davis in the fall of 2010.

{¶ 11} Several witnesses testified for the defense. Frank Rock ("Rock"), who works in the accounts payable directorate of the DFAS and is the former president of the DFAS AFGE Council, testified that he was designated as the chief negotiator for all union matters relating to the agency while Davis was the executive secretary. Rock stated that during the period from September 2009 to May 2010, the union had sporadic contract negotiations, including a three- month break. According to Rock, 50 percent of Davis's time was spent on union negotiations and the other 50 percent should have been spent in his local office.

{¶ 12} The jury found Davis guilty of theft in violation of R.C. 2913.02(A)(3), a fourth-degree felony, as charged in the indictment in CR- 558926. Davis subsequently pleaded guilty to attempted theft, in violation of R.C. 2923.02 and 2913.02(A)(3), a first-degree misdemeanor, in CR-554727. The court sentenced Davis to two years of community control sanctions and ordered him to pay restitution in the amount of $13, 635 in CR-558926, and $1, 358.26 in CR-554727. Davis now appeals and raises five assignments of error.

Sufficiency and Manifest Weight

{¶ 13} In the first assignment of error, Davis argues there was insufficient evidence to support his theft conviction. He contends there was no evidence that he purposely deprived DFAS of any money by deception, and there was no evidence proving what amounts, if any, he was overpaid during the relevant time period. He contends the overuse of official time on his time sheets was a coding error and not a crime.

{¶ 14} In the second assignment of error, Davis argues that his theft conviction is against the manifest weight of the evidence. However, he does not raise any new issues and reiterates the same arguments raised in his first assignment of error with respect to sufficiency of the evidence. Therefore, although the terms "sufficiency" and "weight" of the evidence are "quantitatively and qualitatively different, " we address these assigned errors together, while applying the distinct standards of review to Davis's arguments. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.

{¶ 15} The test for sufficiency requires a determination of whether the prosecution met its burden of production at trial. State v. Bowden, 8th Dist. No. 92266, 2009-Ohio-3598, ΒΆ 12. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable ...


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